Same sex parents and the law

Fakediamond

What is the current legal position of same sex parents under the Irish Consitution, whether married, Civil Partnership, or unmarried?

I read an article a while back which implied that the law has still not caught up with the changing family form and that a biological mothers rights over a child still trump unmarried fathers or same sex married, or unmarried partners, due to the constitution still recognising opposite sex, married parents as the “natural” family unit. Is that still the case today?

Peregrinus

The Constitution recognises the family as "as the natural primary and fundamental unit group of society", and "pledges itself to guard with special care the institution of Marriage, on which the family is founded". (They obviously had lots of spare upper case letters when they were doing the typesetting for this.)

Since the 34th amendment, this reference to "Marriage" now embraces both same-sex and opposite sex marriage.

However it's not necessarily the case that, when two people are married, any child of one is also a child of the other. We've always had the phenomenon of step-children. From a child's point of view, the "Family" includes the child and the child's parents (whether or not married to one another), but it doesn't include the parents other spouses or other conjugal partners. Obviously, when a same sex couple is co-parenting a child, the child is likely to be the biological offspring of only one of the couple, and to have another parent who is not one of the couple. That's a situation than can arise in an opposite-sex marriage as well, obviously, but it's going to be the norm with a same-sex marriage where there are children.

The position is more straightforward where a same-sex couple adopt a child. They are both the child's adoptive parents, and the child's biological parents are effectively removed from the parental role by the adoption order.

Fakediamond

Thanks for that, which brings up another point. Can unmarried people adopt, where one party is not the biological partner? Whether opposite sex or same sex?

I suppose what I’m really wondering is, with all the progress that we have made as a society, does the Constitution still recognise marriage as constituting the usual family form. If people choose not to marry, are they experiencing discrimination where children are concerned? Can they have equal rights to parent their children? It seems to be that discrimination still exists for unmarried parents. What if they separated before, or shortly after a child was born, for example? I know they can be named on the birth certificate, but does that give equal rights?

Peregrinus

If you are spouses, or civil partners, or a cohabiting couple for at least (I think) 3 years, and if your partner has a child who has had a home with the two of you for at least 2 years, then you can apply to adopt that child. This is a recent change. (2017, I think.)

But note two things. First, obviously the child has another parent, whose rights are going to be extinguished by that adoption. And (as with any other adoption) if that parent isn't consenting it's going to be very difficult to get the adoption. You'll have to show that they have failed pretty comprehensively in their role as a parent.

Secondly, as with all childcare matters, the paramount consideration is not what you want, or what either or both of the child's parents want; it's what's in the best interests of the child. Obviously, in the circumstances, it should be possible to make a strong case that it's in the child's best interests to align legal status with the reality of his or her family life, but you also have to consider the implications of severing the child's legal (and possibly social) connections with his birth family on the other side.

So, bottom line: this can be done, but it's not a shoe-in. But adoptions never are.

If people choose not to marry, is there discrimination? Depends on what you mean by "discrimination"; a married father has automatic parental rights with regard to children of the marriage, but whether an unmarried father does depends, at least at first, on how the birth is registered, and that is something largely controlled by the mother. Whether you see that as arbitrary and invidious discrimination, or a necessary flexibility to deal with the reality that non-marital children may be the produce of a committed, stable, conjugal relationship or of a one-night stand or anything in between is up to you. But there are certainly cases of non-marital fathers who feel disadvantaged by this.

Once he's on the birth cert he starts off with equal rights but if, um, unhappy differences arise between the couple and they cannot or will not parent jointly in an effective manner, the matter may end up in court with one parent seeking guardianship or custody against the other. I think the usual complaint here is not that unmarried parents tend to get the rough end of the stick but that fathers do. But it may well be tht unmarried fathers feel they do badly on both counts - I can't say. Again, while warring parents tend to view the matter in terms of their own rights, the legal structure is that the paramount consideration is the best interests of the child, and the rights and obligations of the parents are dictated by that.